Kerala High Court
K.V. Paulose vs Kerala State Rural Roads Development ... on 7 October, 2022
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Friday, the 7th day of October 2022 / 15th Aswina, 1944
IA.NO.1/2022 IN WA NO. 42 OF 2022
AGAINST JUDGMENT DATED 26.11.2020 IN WP(C) 22315/2020 OF THIS COURT
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PETITIONER/APPELLANT:
K.V. PAULOSE, AGED 68,S/O.K.V.VARGHESE, KUNNEL HOUSE, KARKAPPILLY
P.O., KOLENCHERY, ERNAKULAM - 682 311.
RESPONDENTS/RESPONDENTS:
1. KERALA STATE RURAL ROADS DEVELOPMENT AGENCY, REPRESENTED BY THE
COMMISSIONER, 5TH FLOOR, SWARAJ BHAVAN,NANDANCODE, KOWDIAR P.O.,
THIRUVANANTHAPURAM - 695 003.
2. THE CHIEF ENGINEER, LOCAL SELF GOVERNMENT (RD) DEPARTMENT,
GOVERNMENT OF KERALA, 5TH FLOOR, SWARAJ BHAVAN, NANDANCODE, KOWDIAR
P.O., THIRUVANANTHAPURAM - 695 003.
3. SUPERINTENDING ENGINEER, KERALA STATE RURAL ROADS DEVELOPMENT
AGENCY, LOCAL SELF GOVERNMENT (RD) DEPARTMENT, GOVERNMENT OF KERALA,
5TH FLOOR, SWARAJ BHAVAN, NANDANCODE, KOWDIAR P.O.,
THIRUVANANTHAPURAM - 695 003.
4. THE EXECUTIVE ENGINEER, PROGRAM IMPLEMENTATION UNIT, GOVERNMENT OF
KERALA, DISTRICT PANCHAYATH, KOTTAYAM - 686 001.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to direct the
respondents not to implement Annexure I in so far as it imposes the
condition of terminating the agreement at the risk and cost of
petitioner/appellant.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of SRI.G.S.REGHUNATH, Advocate for the petitioner and of SRI.K.P.HARISH,
SENIOR GOVERNMENT PLEADER the court passed the following:
P.T.O.
EXT.P24:TRUE COPY OF THE LETTER DTD.01/01/2020
SENT BY THE 4TH RESPONDENT TO THE PETITIONER
AND RECEIVED BY THE PETITIONER ON 17.10.2020.
ANNEXURE I:TRUE COPY OF THE ORDER NO.ENGG.1884/DB2/KSRRDA/2012
DATED 16/09/2022 ISSUED BY CHIEF ENGINEER,
KERALA STATE RURAL ROADS DEVELOPMENT AGENCY,THIRUVANANTHAPURAM.
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S.Manikumar, C.J.
&
Shaji P.Chaly, J.
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I.A.Nos.1 & 2 of 2022
& W.A.No.42 of 2022
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dated this the 7th day of October, 2022
ORDER
S.Manikumar, C.J.
I.A. No. 1 of 2022 is filed by the appellant for a direction to the respondents not to implement Annexure-I insofar as it imposes the condition of terminating the agreement at the risk and cost of the appellant.
2. Appellant has also filed I.A. No. 2 of 2022 for accepting the additional document (Annexure-I) in the above writ appeal.
3. We have gone through the averments made in support of the above petitions.
4. Being satisfied with the reasons, both the applications are allowed. Registry is directed to take on record Annexure-I document.
W.A.No.42 of 2022-:2:-
5. Annexure-I is the proceedings of the Chief Engineer, Kerala State Rural Roads Development Agency, Thiruvananthapuram, and it reads thus:
"PROCEEDING OF THE CHIEF ENGINEER, KERALA STATE RURAL ROADS DEVELOPMENT AGENCY, THIRUVANANTHAPURAM (Present: Sandeep K. G.) Sub:- PMGSY 2005-2006 (Phase-V) - Package No.KR-07- 09, Parippu Thollayiram Manchira Road - Ettumanoor Block, Kottayam District including Maintenance for five years after construction - Terminated with risk and cost of contractor - Regarding.
Read:- 1. Agreement No.84/SE/KSRRDA/2012-2013 dated 16/11/2012.
2. Notice issued from this office on 09/03/2020, 20/3/2020 and 01/10/2020.
3. W.A. No.548 of 2021.
Order No.Engg.1884/DB2/KSRRDA/2012 dated 16/09/2022 The work of PMGSY- 2005-2006 (Phase-V) Package No KR-07-09, Ettumanoor Block, Kottayam District, including Maintenance for five years after construction was awarded to SILK.V Paulose, PWD Contractor Kunnel House, Karukapilly PO, Kolencherry. Emakulam District, Pin 682371 and Agreement for the work executed vide reference 1st cited above with a time of completion of 12 months from date of execution of the agreement. The Executive Engineer.W.A.No.42 of 2022 -:3:-
PIU, Kottayam has reported that the contractor did not turned out to complete the work in time.
Whereas, under clause 4.52.1 of condition of contract under Agreement No. 84/SE/KSRRDA/ 2012- 2013 DATED 16/11/2012 the Chief Engineer. Kerala State Rural Roads Development Agency, Thiruvananthapuram, shall have powers to take action which is final and binding under one or more of the clauses in the condition of the contract in the event of the delay or suspension in the execution of the work. In the said Agreement for Package KR-07-09 Ettumanoor Block, Kottayam District, by Sri.KV Paulose, PWD Contractor. Kunnel House, Karukapilly PO, Kolencherry. Ernakulam District Pin 682371, as per the opinion of the undersigned, you failed to execute the work as per the terms of agreement and whereas you were served with letters vide reference 2 cited which has not been responded by you so far.
As per the judgement for WA No. 548 of 2021, it is decided to terminate and relieve the contractor from work, reserving the right to recover the liquidated damages. Therefore, under power delegated to me under sub-clause 4.52 of condition of the contract, I. Sandeep.K.G. Chief Engineer for the aforesaid work under aforesaid agreement for and on behalf of Governor of Kerala hereby
a) Rescind the contract as aforesaid on which rescission, your security deposit of work and performance guarantee stands absolutely forfeited to Government.
b) The contractor has to Remit the employers additional cost for completing the work ie., 200% of uncompleted work to this office within 30 days of intimation of the amount.
c) Payment upon termination will be as per clause 53. of General Conditions of the Contract and sub clause W.A.No.42 of 2022 -:4:- there under the Standard Bidding Document. You are also hereby served with notice to the effect that the work executed by you will be measured upon the date which will be intimated to you separately for which you are asked to attend for joint measurement failing which the work will be measured by the department unilaterally in your absence and results of the measurement will be final and will be binding on you.
d) You pay stop the work immediately, make the site safe and secure and leave the site as soon as reasonably possible.
This is without prejudice the Government's right to take action under any other clauses or sub-clauses of the Agreement and to realize Government's dues, losses and damages what o ever under such clauses or sub-clauses:
To Sri. KV.Paulose, PWD Contractor, Kunnel House, Karukapilly PO, Kolencherry, Ernakulam District Pin- 682371.
Chief Engineer for and on behalf of Governor of Kerala"
6. By inviting the attention of this court to the contents of abovesaid proceedings, Mr. G. S. Reghunath, learned counsel for the appellant, submitted that if the competent authority is permitted to terminate the contract, at the risk and cost of the W.A.No.42 of 2022 -:5:- appellant, then the instant writ appeal would become infructuous.
7. He further submitted that W.P.(C)No.22315 of 2020 was filed to quash Exhibit P24 therein, a communication directing to expedite the work. Other prayers were also sought for in the writ petition. But the learned single Judge declined to grant the reliefs sought for and, therefore, the appellant was constrained to prefer this appeal.
8. At this juncture, he also invited the attention of this court to paragraph No.13 of the judgment in W.P.(C)No.22315 of 2020, wherein the writ court, observed that "It will also be open for the respondents to relieve the petitioner, without risk and cost, which would only result further delay in completion of the work."
9. Per contra, Mr. K. P. Harish, learned Senior Government Pleader appearing for the State, submitted that vide order dated 01.04.2022 in W.A.Nos.42 of 2022 and 548 of 2021, W.A.No.42 of 2022 -:6:- submission of the learned counsel for the appellant in W.A.No.42 of 2022 and submission of the learned Government Pleader in W.A. No.548 of 2021 that appellants in W.A.No.548 of 2021 have decided to terminate and relieve the contractor from work, reserving their right to recover the liquidated damages, were taken note of.
10. In support of the above contentions, learned Senior Government Pleader drew our attention to paragraph Nos.4 and 6 of the order dated 01.04.2022.
11. W.A.No.548 of 2021 is filed by the Government against the judgment in W.P.(C)No.22315 of 2020 dated 26.11.2020, by which, a learned single Judge, while setting aside Exhibit P24 order, directed the respondent therein either to allow the writ petitioner to continue the work on the basis of the fresh terms and additional time or else to relieve him without risk and cost.
W.A.No.42 of 2022-:7:-
12. Heard learned counsel Mr. G.S. Reghunath for the appellant and learned Senior Government Pleader Mr.K.P. Harish for the respondents, perused the pleadings and material available on record.
13. Though Mr. G.S. Reghunath, learned counsel for the appellant, has sought for a prayer in I.A.No.1 of 2022, not to implement Annexure-I, insofar as it imposes the condition of terminating the agreement at the risk and cost of the appellant, during the course of arguments, submitted that he has no objection for the termination of contract vide order dated 16.09.2022 of the Chief Engineer, Kerala State Rural Roads Development Agency, Thiruvananthapuram (Annexure-I), but the appellant is aggrieved only in respect of the last portion of the said order namely, "This is without prejudice to the Government's right to take action under any other clauses or sub-clauses of the Agreement and to realise Government's W.A.No.42 of 2022 -:8:- dues, losses and damages what so ever under such clauses or sub-clauses.
14. Mr.K.P.Harish, learned Senior Government Pleader, submitted that once the right is reserved, that portion of the order need not be stayed.
15. Having heard the submissions, we are of the view that there is no objection on the part of the appellant to terminate the contract. Objection is only with respect to determination of the dues, losses and damages, if any, consequent to the termination and recovery thereof. Termination of the contract, vide order dated 16.09.2022, has not been challenged. However, respondents are at liberty to proceed to determine the losses, damages, whatsoever under any clauses or sub- clauses of the agreement.
16. In the light of the above, there will be an interim order directing the respondents not to pass any orders of recovery, pending disposal of the writ appeal.
W.A.No.42 of 2022-:9:-
Post the matter on 26.10.2022 along with W.A.No.548 of 2021.
Sd/-
S.Manikumar Chief Justice Sd/-
Shaji P.Chaly Judge vpv 07-10-2022 /True Copy/ Assistant Registrar